Capacity

August 2, 2011

In the health care and legal settings, the term “capacity” is often used with respect to mental competence and the ability to make an informed decision regarding one’s health care, personal matters, financial affairs, or legal matters. With respect to our youth, capacity is defined by age, and a minor is considered legally incapacitated until reaching the age of majority, which can vary from state to state. A youth’s capacity to make a decision cannot be discussed independently of the context in which the decision is made—the subject matter involved, the governing law (whether state or federal), and the time in history. For example, the age one can enlist in the armed services without a parent’s consent may differ from the age in which a young person can marry without a parent’s consent, enter into a binding legal contract, or exercise the right to vote.

Even if a child has a mental or intellectual disability which continues beyond the age of majority and the individual does not have the ability to make reasoned decisions, he or she will be considered to have capacity or be competent in the eyes of the law simply because he or she is no longer a minor. Therefore, once he or she has reached the age of majority, a court proceeding must be initiated to have the individual declared incompetent in one or more areas of decisionmaking and a guardian appointed. Guardianship proceedings, which are referred to as conservatorship proceedings in some states, are a matter of state law. Clear and convincing evidence is required to support a finding of incompetence or incapacity, because such a finding strips the individual (the proposed “ward”) of his or her ability to make any binding legal decisions in the area, such as matters of person or estate (finances), in which he or she is declared incompetent.

In adulthood, an individual’s capacity may come into question if he or she is diagnosed with a severe mental illness that is not controlled by medication— either due to lack of response to a medication regimen, lack of treatment, or lack of adherence to a treatment plan. One’s capacity can also be diminished by an accident resulting in a brain injury, chronic drug and/or alcohol dependence, or an illness, which severely impairs awareness of the environment, intellectual functioning, and/or reasoning abilities. Electrolyte imbalances and even reactions to prescribed medications can lead to mental impairment and incapacity, but fortunately in many, if not most, of these cases, the symptoms are reversible if the cause is identified and treated.

A stroke which affects the areas of the brain which control the ability to receive and process information, or other conditions and diseases which interrupt or impair blood flow to the brain, may lead to diminished capacity or incapacity. Scientists are continuing to gain new insight into diseases of the brain and causes of dementia, such as Alzheimer’s disease, which reduce an individual’s ability to retain and process information accurately.

No individual should be judged to be incapacitated merely due to a disability, advanced age, or being diagnosed with even a progressive condition such as Alzheimer’s disease. One’s capacity or incapacity is a functional determination made in a particular context. Some areas of decision-making require a higher level of comprehension and reasoning than others. For example, in many states, the “test” of competence or capacity to make a will—for example, the required level of demonstrated knowledge and understanding—is lower than that to enter into a binding contract. Several instruments to measure capacity are presently available to clinicians, but there is no one tool that is universally embraced as a definitive measure of capacity, nor is it reasonable to expect that one reliable, practical, and feasible measure can become the definitive tool to address the many variables involved in a determination of capacity, which include variations in state law.

To some extent, the issues facing the parent of a child with significant disabilities will be different from those facing the family or caregiver of an individual who developed impairments as an adult or in later life. If the child is likely to need a guardian throughout his or her life, many states allow the parent to nominate individuals to serve as the guardian if neither biological parent is available. Many children diagnosed with disabilities may have enough cognitive ability to use other, less drastic legal means to designate surrogate decisionmakers when they reach the age of majority. These include durable powers of attorney for finances and health care powers of attorney. Similarly, adults whose cognitive or reasoning abilities are diminished may have the understanding, insight, and willingness to take legal measures to appoint persons of their choosing to handle their affairs if they become unable to do so. While evaluating whether or not an individual has the ability and willingness to put some safeguards in place in the event that he or she does become incapacitated in the future, it is also important to pursue evaluation and treatment to determine if the individual’s deficits are reversible or if further deterioration can be delayed or minimized.

Although, as stated earlier, a determination of incapacity alone should not be based on age alone, advanced age can be associated with a greater likelihood of incapacity. In 2001, women were approximately 58% of the population age 60 and older and 70% of the population age 85 and older. Since women have greater longevity than men, they are more likely to face a period of infirmity or incapacity. “Compared with men, older women are three times more likely to be living alone, spend more years and a larger percentage of their lifetime disabled, [and] nearly twice as likely to reside in a nursing home.”2 These statistics show how important it is for women to plan for their futures by formally designating surrogate decision-makers for both financial matters and health care while they have the capacity to do so.

When making the decisions of who to name or appoint in durable general powers of attorney, health care powers of attorney, and/or living wills, successors or alternates should also be named so that if the first individual named cannot serve, there is another person identified to act in his or her place. When making these very important choices, the “principal” or person putting these documents into place should make her decisions based on “who is best for the job” and whose value system is consistent with her own rather than automatically choosing her spouse, oldest child, or closest relative. Although it is difficult to contemplate being incapacitated and unable to control one’s personal and financial affairs, by planning for the future, the individual is exerting more control over her future by appointing trusted individuals to act on her behalf.